The SA Human Rights Commission (SAHRC) says it is considering approaching parliament to pass a legislative amendment giving it the power to make its directives binding.
In a crucial judgment on the scope of the commission’s legal powers, the Constitutional Court on Wednesday ruled the commission’s directives are not legally binding but rather recommendations.
The commission is concerned that Wednesday’s ruling could lead to some transgressors of human rights ignoring its recommendations in the absence of a court order.
South African Human Rights commissioner Tshepo Madlingozi said the chapter 9 institution is considering approaching parliament to amend the law so that the commission’s findings will be legally binding.
Madlingozi said the chief concern is that “constitutional delinquents” would take advantage of the commission’s directives, lacking legal authority.
“There is a fear from people that … constitutional delinquents would interpret this judgment to mean, ‘this commission cannot tell me anything. In any case their recommendations are not binding’,” Madlingozi said.
“We will consider approaching parliament and we will be asking it to consider an amendment to our [South African Human Rights Commission] Act to clarify that the recommendations of the human rights commission are binding.”
The commission had argued in the apex court that without binding directives, it remained “toothless”, with no legal power to ensure redress in human rights violations without going to court first.
But in a judgment written by acting justice Caroline Nicholls, the court disagreed with the commission’s assessment. The judgment states that the Supreme Court of Appeal is correct in finding that the commission’s directives aren’t binding, but it also says that does not make the commission toothless in its constitutional mandate to protect human rights.
“It must be stressed that recognising the absence of binding remedial powers does not diminish the constitutional importance of the SAHRC or render its work ineffectual. The SAHRC is far from toothless,” the judgment reads.
“Even without binding remedial competence, it remains a potent and indispensable guardian of human rights within our constitutional scheme.”
The top court found the commission’s influence lies in the exercise of extensive investigative authority, the support of litigation and the exertion of normative pressure on organs of state and private actors alike.
University of Pretoria law lecturer Llewelyn Curlewis said the commission had misinterpreted the law in arguing its directives were binding.
“They assumed rights that they do not have in terms of the law. They were operating in a vacuum and assumed because they have a title of human rights commission that they are above scrutiny,” Curlewis said.
“It is a correct judgment and interpretation of the law. That being said, it does not mean the commission is toothless,” he said.
Curlewis said if that were the case, every commission of inquiry investigating corruption would also be toothless and a waste of money, because they also only make recommendations.
“They [the commission] are a very important pillar of society and an entity that must be available to give effect to constitutional values. But that does not mean they can be escalated to the level of the court where they can issue binding directives. There must still be oversight by a court of law.”
Madlingozi remains confident that the commission cannot be ignored by human rights transgressors, despite the Constitutional Court’s ruling.
“The court explicitly uses the phrase ‘the commission is not a toothless institution’. Secondly, it confirms that the commission still has extensive investigative powers. The act is very clear: anyone who hinders the commission in doing their work commits an offence … we still have subpoena powers,” Madlingozi said.
He added that 90% of the commission’s directives are complied with, though it would need to increase its legal budget to be able to approach the courts to enforce recommendations.
The case arose after the commission directed a farmer in Mpumalanga to grant residents of a farm access to borehole water. In the litigation that followed, the commission had sought a general declaratory order from the high court that its directives are legally binding.
The high court and the SCA, on appeal, found that a reading of the constitution and the Human Rights Commission Act does not stipulate the directives to have legal force. Instead, the constitution empowers the commission “to take steps to secure appropriate redress where human rights have been violated”.
The commission was established in 1995 shortly after the end of the apartheid government, which had violated human rights in multiple ways, including through racial discrimination.
In the Mpumalanga case, Gerhardus Boshoff had bought the De Doorn Hock Farm from a company called Agro Data CC. The farm had occupiers, including Tubatsi Mosotho, who had lived on the farm since 1965 and had accessed free water from a borehole on the farm.
From 2016 Boshoff had forced the occupiers to pay for water. In its investigations, the commission found that the occupiers had an agreement with a previous owner to use the borehole and that Boshoff had violated the occupiers’ right to the water.
The commission directed Boshoff to allow the occupiers to continue using the borehole. When he failed to do so, the commission went to court seeking a declaratory order that its directives in terms of the constitution were binding and that the refusal to comply was unlawful.
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